Congress Gets Decent

For years the U.S. Congress has been watching from the sidelines as the Federal Communications Commission has struggled with its core mandate, defining ownership rules for electronic media. But after a single breast was briefly bared at the Super Bowl, Congress leaped to action, with the House of Representatives passing legislation that cracks down on indecent content on radio and TV. As massive swaths of media will be exempt from the new rule, it is, even if enacted, likely to be futile, which is on balance a good thing.

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By a 391-to-22 vote, the House boosted the maximum fines for broadcasters airing indecent content, and it even allowed for the punishment of performers. The bill would impose fines of up to $500,000 per violation, up from the $27,500 under current law. If the fines were applied on a per-station basis, a single incident could in theory cost a network millions of dollars. Broadcasters also could have their licenses revoked after a third violation.

While hand-wringing about indecency is perennial, this legislation was propelled by the public outcry over
Janet
Jackson
Janet Jackson
baring her breast during the Super Bowl halftime show. Of the tens of millions watching the show, some fraction actually noticed the split-second bustier pop at the time. But no one could have missed the endless replays on TV news shows and on late-night comedy shows.

While the FCC and its chairman,
Michael
Powell
Michael Powell
, moved instantly against CBS, a unit of
Viacom
, many in Congress clearly see its power as too limited in this area. While a bill was already in the works to raise fines tenfold to $275,000 per incident, the new provision would nearly double that figure yet again. A small minority in Congress voted against the bill on free speech concerns. The bill faces an uncertain future in the Senate, largely because of amendments attached to it.

One amendment relates to cross-ownership rules, which seek to limit the concentration of media ownership. Congress for years let the FCC struggle with such rules on its own; while it watched, aspects of the old rules were struck down by the courts for various reasons. Last June, the FCC voted 3 to 2 to adopt new rules allowing owners to own more television stations.

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Only after the FCC voted did Congress get back into the act, with various measures designed to block the new rules. Meanwhile, a Federal appeals court in Philadelphia blocked the FCC's new rules from coming into effect. Last month that same court heard arguments about whether to make that ruling permanent.

While the FCC's changes to media ownership laws finally roused Congress to act on an issue that had been festering since 1996, Janet Jackson's dance, coupled with lewd dances during the halftime show, drew a rapid response from lawmakers.

The Senate amendment would freeze the FCC's media ownership rules, which allow for a greater concentration of ownership, in place for a year. It would also require the General Accounting Office to study whether there is any link between indecent programming and media ownership concentration.

Even without such a study, it would seem clear that that risqué or indecent programming thrives where there is a wider range of media outlets. The major media companies like
Time Warner
and
The Walt Disney Co.
have grown through merger, and
Comcast
's
bid for Disney, if successful, would be another step in that direction. But wider trends in communication have been fueled by the growth of new media over the last several decades like cable television, satellite television, new broadcast networks and the Internet.

Arguably, indecent programming flourishes on the edge, and moves to the center as it gains popularity. Rap music was fostered by small companies; now it's on the Super Bowl and Janet Jackson feels the need to keep pace.
Rush
Limbaugh
Rush Limbaugh
was too indecent for Disney's ESPN unit, but he thrives on
Clear Channel Communications
radio, and he is incidentally railing against the new proposals, seeing them as a part of a potential plot by the left to silence him. He is joined in his crusade by the so-called shock jock Howard Stern, who has made more money being fined by the FCC than anyone else.

Broadcast indecency standards--whatever they are--do not apply to cable and satellite channels, and certainly not to the Internet. The Associated Press reports that the Senate Commerce Committee rejected a proposal to bring cable stations under FCC jurisdiction.

As long as cable is relatively unfettered, edgier, even indecent, programming will thrive, for better or worse, and it will filter to the mainstream with more bra-flap-type flaps to follow.